John I. Laskin

Following the release of its reasons on appeal, the Court of Appeal received written submissions on costs.

The successful respondent, the Municipality of Clarington, was awarded costs of the appeal fixed at $15,000 on a partial indemnity basis, inclusive of GST and disbursements.

The appellant appealed his conviction for possession of child pornography, arguing the trial judge misapplied the burden of proof, failed to give reasons for rejecting his evidence, failed to self-instruct on a Vetrovec warning for his ex-wife's testimony, and erred in conducting an unassisted handwriting comparison.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's assessment of the evidence or his cautious approach to the handwriting comparison.

The Crown's cross-appeal on sentence was allowed on consent, adding probation conditions and a SOIRA order.

The appellant appealed his conviction for first-degree murder and home invasion.

The Crown's case relied on statements made by the appellant during a 'Mr. Big' operation, cell phone records, and a tacit admission to a friend.

On appeal, the appellant argued the trial judge erred by permitting prohibited propensity reasoning, ruling that the defence violated the rule in Browne v. Dunn, and instructing the jury on the co-conspirator's exception to the hearsay rule.

The Court of Appeal dismissed the appeal, finding no impermissible propensity reasoning, upholding the Browne v. Dunn ruling as fair, and concluding the hearsay instruction caused no prejudice.

The appellant appealed a disposition of the Ontario Review Board that restricted his possession or use of cell phones, portable wireless communication devices, and computers.

The Court of Appeal found no basis to interfere with the Board's decision, but clarified that the restriction on computer use was intended to prevent internet access and did not preclude the appellant from using a computer that has no internet connection.

With that clarification, the appeal was dismissed.

The appellant appealed his convictions for two counts of theft over $5,000.

The Crown's case relied on circumstantial evidence, primarily expert cell phone tracking data showing the appellant's phone was in frequent contact with his accomplice's phone and near the locations of the thefts.

The appellant argued the trial judge erred by using evidence from each count as similar fact evidence for the other, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding the trial judge did not use similar fact reasoning and that the circumstantial evidence reasonably supported the conclusion that the appellant was the accomplice.

The appellant, a law clerk, appealed a summary judgment dismissing his fourth party claim against a former articling student/associate for contribution and indemnity in a solicitor negligence action.

The Court of Appeal upheld the dismissal, agreeing the claim was misconceived as the principal solicitor was responsible for the associate's actions.

However, the Court allowed the appeal on costs, reducing the substantial indemnity costs award from $25,000 to $17,000, finding the appellant's counsel did not mislead the court and the allegations in the pleadings were not entirely irrelevant.

The moving parties, Objecting LTD Beneficiaries, sought an order expediting their motion for leave to appeal and consolidating the leave motion with the appeal itself.

The responding parties consented to expediting the leave motion but opposed consolidation.

The court agreed with the responding parties, finding no urgency requiring consolidation as benefits continued until the end of the year.

A schedule for the expedited leave motion was approved.

The purchaser appealed a trial judgment finding the vendor was entitled to a purchase price readjustment of approximately $433,000.

The Court of Appeal dismissed the appeal, agreeing that a rollover credit was an adjustment to the purchase price, not a term of the contract.

The vendor cross-appealed on costs and pre-judgment interest.

The Court allowed the cross-appeal, finding the trial judge erred by applying a $100,000 settlement from the vendor's negligent solicitor entirely as a credit against damages, and instead attributed $50,000 to unrecoverable costs.

The Court also awarded pre-judgment interest from the date of closing, holding that mutual delay in commencing litigation did not justify depriving the vendor of interest.

The appellants appealed a motion judge's refusal to reinstate their third party claim after it was dismissed by the registrar.

The Court of Appeal allowed the appeal, finding that the motion judge failed to attach sufficient weight to the fact that the progression of the third party claim was entirely dependent on the main action, which was still pending.

Furthermore, the form of the registrar's dismissal order had misled counsel, and the motion judge's finding of prejudice was overtaken by the appellants' decision to discontinue claims against the minor third parties.

The appellants appealed a summary judgment, arguing the motion judge erred in calculating the amounts owing under a loan and guarantee.

Both parties agreed that calculation errors occurred and consented to rectifying the judgment amounts for two of the guarantors.

The Court of Appeal rectified the judgment accordingly and ordered a trial on the discrete issue of whether one guarantor's liability was limited to 25 percent of the outstanding loans.

The appellants appealed an order permanently enjoining them from operating a scrap yard and storing white goods on their property, arguing they had a legal non-conforming use.

On appeal, they raised new arguments based on the Supreme Court's decision in Saint-Romuald and accessory use.

The Court of Appeal dismissed the appeal, finding that these issues were not raised at trial and the evidentiary record was incomplete, making it unfair to the municipality to order a new trial.

The Crown appealed a trial judge's decision to stay proceedings against the accused after finding him guilty of sexual assault and sexual touching.

The trial judge had granted the stay on the basis that lost police audiotapes and notes from a 1994 investigation prejudiced the accused's ability to make full answer and defence.

The Court of Appeal allowed the appeal, finding that the Crown had satisfactorily explained the loss of the audiotapes and that the lost evidence was not so prejudicial as to warrant a stay, given the availability of other records and evidence to challenge the complainants' credibility.

The Court set aside the stay and ordered a new trial rather than reinstating the guilty verdicts, as the trial judge had failed to factor the lost evidence into his assessment of the complainants' credibility.

The defendants in a personal injury action sought an order to compel the plaintiff to attend a defence medical examination.

The plaintiff agreed on the condition that the examination be audio recorded, citing systemic bias among defence medical examiners.

The motion judge and Divisional Court allowed the condition.

On appeal, the Court of Appeal allowed the appeal and ordered the examination to proceed without conditions, holding that an order to record a defence medical requires a specific factual foundation of potential abuse or concern regarding the specific doctor, not merely allegations of general systemic bias.

The appellant, operator of a retirement home, appealed the dismissal of its action for misfeasance in public office against the City of Hamilton and the Regional Municipality of Hamilton-Wentworth, arising from an order to comply issued in 1994.

The appellant also appealed the trial judge's costs award of over $4 million.

The Court of Appeal upheld the dismissal of the misfeasance claim, finding the public officials acted lawfully and in good faith to protect vulnerable residents.

However, the Court allowed the appeal on costs, reducing the award to a partial indemnity scale and adjusting for duplication of counsel after the City and Region amalgamated.

The appellant filed written submissions asking to appeal his sentence following a previous hearing.

The Court of Appeal accepted that the appellant had not abandoned his sentence appeal, but ultimately dismissed the appeal for the reasons set out in the Crown's response.

The appellant sought to overturn findings of fact made by a motion judge during a costs determination, arguing they would be prejudicial in ongoing litigation due to res judicata.

The Court of Appeal dismissed the appeal, holding that there is no free-standing right to appeal findings of fact independent of the costs award.

The Court noted that the application of res judicata and issue estoppel is discretionary, and the appellant could argue before the trial judge that they should not apply given the context of the findings.

The appellant and respondent entered into a co-habitation agreement acknowledging the appellant's $61,000 net equity in their home.

After separation, the appellant obtained a consent judgment for the amount.

The respondent subsequently made an assignment in bankruptcy and was discharged.

The appellant appealed the discharge, arguing for the first time that the $61,000 was a contingent obligation for future spousal support that should survive bankruptcy under s. 178 of the Bankruptcy and Insolvency Act.

The Superior Court dismissed the appeal, finding the claim was a transparent attempt to shelter the debt from bankruptcy.

The Court of Appeal upheld the decision, confirming the agreement clearly related to the appellant's net equity in the matrimonial home.

Following a successful appeal, the Court of Appeal received written submissions on costs.

The appellant did not seek costs for either the trial or the appeal.

Consequently, the previous trial costs order was set aside, and the court ordered that no costs be awarded for either the trial or the appeal.

The plaintiff's personal injury action was dismissed for delay by the registrar after a status notice was not served on the plaintiff or his counsel due to an administrative error.

The plaintiff's counsel discovered the dismissal order shortly after but waited two years to bring a motion to set it aside.

The motion judge dismissed the motion due to the delay.

On appeal, the Court of Appeal held that while the failure to serve the status notice was an irregularity rather than a jurisdictional error, the motion judge erred by applying a rigid test instead of a contextual approach.

Balancing all factors, including the lack of prejudice to the defendants, the Court set aside the dismissal order and reinstated the action.

The respondent supplier manufactured custom doors for the appellant subcontractor, who failed to pay.

The supplier claimed breach of trust under s. 8(1) of the Construction Lien Act against the subcontractor and its principals.

The trial judge dismissed the trust claim because the supplier did not know the specific improvements where the doors were installed.

The Divisional Court allowed the appeal.

The Court of Appeal dismissed the appellants' appeal, holding that s. 8(1) does not require a supplier to intend that materials be incorporated into a known and specific improvement at the time of supply.

A link to the improvement is sufficient, and in this case, the link was established because the subcontractor deliberately frustrated the supplier's attempts to trace the materials.